Kaltoft – a step (in the wrong direction?) towards protection from weight discrimination under EU law

Dr Iyiola Solanke

Over the last two to three decades the prevalence of overweight and obese[1] people has become a major public health issue across countries, age-groups, class, race and ethnicity. As long ago as 2003, research estimated that 61% of Americans were overweight, and 20% were obese. In 2006, the OECD ranked Britain’s overweight and obesity rate (62%) as the worst in Europe and the third-worst in the world, behind Mexico (69.5%) and the U.S (67.3%). In 2008, more than 1.4 billion adults were overweight, including over 200 million obese men and nearly 300 obese million women. More than 40 million children under the age of five were overweight in 2011. Children and adults are getting fatter.

The rise in body size is a public health issue because of its cost: medical experts link numerous ailments to excess weight, such as diabetes, angina, osteoarthritis, stroke, gout, gall bladder disease, breast cancer, cancer of the colon and ovarian cancer. Overweight and obese people are said to be more prone to heart disease, stroke, high blood pressure, diabetes, chronic depression and many other life threatening conditions. An overweight child is likely to become an overweight adult. The cost to the public purse could be billions of pounds.

The CJEU has now confirmed that obesity is also a matter for equality law. EU law does not formally prohibit fattism – like other public health issues, this remains within the competence of the member states[2] – but in the first case of its kind, the CJEU decided that discrimination on the grounds of obesity can fall within the disability strand of the Equal Treatment Directive 2000/78. This was stated in answer to questions arising before a Danish court during a case concerning the weight of a childminder.

Kaltoft

Mr Kaltoft was hired by the Municipality of Billund in 1998 on a permanent contract as a childminder. He was obese at the time of his initial employment and, despite periods of weight loss, remained such throughout his 15 years in this post. From March 2010, he appeared to be under informal review, being visited by his boss and asked about his weight. During 2010, when the number of children in Billund fell, he was given fewer children to look after. That same year, he was chosen to be dismissed. When Kaltoft asked why he was the only childminder to be dismissed, he was told it was due to his decreased workload. Kaltoft was convinced that it had something to do with his weight.

His trade union brought an action before the District Court seeking compensation for him, arguing that he had been subjected to weight discrimination. The Danish court stayed proceedings to ask the CJ four questions, of which only the first and fourth were answered: whether it is contrary to EU law (for example Article 6 TEU on fundamental rights) for a public-sector employer to discriminate on grounds of obesity in the labour market; and whether obesity could be deemed to be a disability covered by Directive 2000/78/EC.

The first question was dealt with relatively swiftly: the Fourth Chamber of the Court of Justice did not emulate the boldness of the Grand Chamber in Mangold but citing Chacon Navas and Coleman declared that ‘EU law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such…’[40]. The Fourth Chamber then considered whether obesity is a disability. Its reasoning began from the purpose of Directive 2000/78: to set out a ‘general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability.’ It then noted the meaning of direct discrimination in this Directive and its scope of application – per Article 3(1)(c) it covers all persons in the public and private sectors, and all phases of employment including dismissals. Citing HK Danmark and Glatzel, where the CJ – taking inspiration from the EU ratification of the United Nations Convention on the Rights of Persons with Disabilities – stated that

53…the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers

It concluded that in order to be compatible with Directive 2000/78, the concept of ‘disability’ a)‘must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity’ [54] and moreover that b) the concept had to be open-ended in relation to the ‘origin of the disability’ [55] – it could not be dependent upon ‘the extent to which the person may or may not have contributed to the onset of his disability.’ [56] Thus while obesity itself is not a ‘disability’ within the meaning of Directive 2000/78 [58], it decided that obesity could be covered by the concept of ‘disability’ in that Directive where

  1. ‘the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.
  2. Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

It was left for the Danish court to decide whether, despite the fact that he was able to work effectively for 15 years as a childminder, his obesity during his term of employment nonetheless limited Kaltoft in the way envisaged by the EU concept of ‘disability’. He would then have to prove that his dismissal was because of his obesity. Continue reading

Very private lives: “acceptable questioning” in sexual orientation asylum cases

Anita Davies

The CJEU’s judgment in the case of A, B and C is due by the end of the year. Ahead of the expected judgment, this post recaps the opinion handed down by Advocate General Sharpston in July.

In February 2014 The Guardian published details of the lines of questioning used by the UK Home Office in questioning gay and lesbian asylum seekers. The questions considered appropriate to ask vulnerable asylum seekers were shocking; including queries such as “what is it about men’s backsides that attracts you?”.

The Home Office’s prurient interest in the very private lives of asylum seekers has been attributed in part to the Supreme Court judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, where the Court found that asylum could not be refused on the basis that an individual would not face persecution due to their sexuality if they behaved with discretion when returned. The onus in questioning therefore shifted from conditions facing gay communities in the country of return to proving sexual orientation, resulting in the Home Office seeking to verify sexual orientation via intrusive questioning. Verifying sexual orientation in asylum claims is an issue that a number of EU states have sought to deal with, and Advocate General Sharpston’s opinion in ABC constitutes guidance as to what is considered acceptable questioning. However, as will be seen below, Sharpston’s opinion has to grapple with the central problem: how do you legally “verify” human sexuality? By its very nature sexuality is impossible to “prove” by reference to anything other than what an individual considers their sexuality to be.

  1. B and C were individuals who submitted asylum claims to the Netherlands authorities on the grounds of a well founded fear of being persecuted in their respective countries of origin because they were gay men. All were refused on the basis that their claims of sexual orientation were not “credible”. Two of the applicants had gone to some lengths to prove their sexual orientation: C had submitted a video depicting him performing sexual acts with a man, and A had been willing to submit to a test to prove that he was gay.

In her opinion, Advocate General Sharpston sought to set out some guidelines as to what was an appropriate method for assessing declared sexual orientation, and if the limits were different from the limits applied to an assessment of the credibility of other grounds of persecution. Sharpston recognised that an “individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life” [38], therefore, an applicant’s averred sexual orientation must always be the starting point in assessing a claim, however:

The competent national authorities are entitled to examine that element of his claim together with all other elements in order to assess whether he has a well-founded fear of persecution within the meaning of the Qualification Directive and the Geneva Convention.

It therefore follows ineluctably that applications for refugee status on the grounds of sexual orientation, like any other applications for refugee status, are subject to a process of assessment as required by Article 4 of the Qualification Directive. That assessment must, however, be carried out in a way that respects the individual’s rights as guaranteed by the Charter.” [48 -49]

Continue reading

The sudden emergence of Charter principles in the Glatzel judgment of the CJEU

european-union-flags-at-t-0021Jasper Krommendijk

The judgment of 22 May 2014 in Glatzel is the first judgment in which the CJEU explicitly discussed article 51(1) and 52(5) of the Charter on Fundamental Rights, which distinguishes between (individual) rights and (programmatic) principles.

In Glatzel, the CJEU issued a preliminary ruling on the request of a German court about the compatibility with the Charter of Annex III to Directive 2006/126/EC (amended by Directive 2009/113/EC) laying down minimum standards relating to the physical fitness to drive a motor vehicle as regards visual acuity. The German court asked whether those physical conditions for drivers constitute discrimination on the grounds of disability and, hence, violate the principle of equal treatment (Article 20 of the Charter), and more specifically, the principle of non-discrimination on the grounds of discrimination (Article 21(1)) as well as the principle of integrating of integrating persons with disabilities (Article 26). The CJEU eventually concluded that it did not have sufficient information to conclude that the Annex is invalid.

There are several interesting points which could be looked at more closely, such as the way in which the CJEU used the UN Convention on the Rights of Persons with Disabilities (CRPD) (para. 45, 68-72) as well as the way in which the CJEU carefully examined whether there is an objective justification of different treatment (see below). These two issues –the application of the CRPD and the elaborate justification test- have been the focus of previous judgments of the CJEU (see for example for the former, Z (Case C-363/12 [2014]).

I. The distinction between rights and principles: a background and earlier cases of the CJEU

This post will, however, scrutinise the novel feature of this judgment: the fact that the CJEU has expressed itself for the first time on Article 51(1) and Article 52(5) of the Charter. These provisions make a distinction between rights and principles in the Charter. Article 51(1) provides:

The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

Article 52(5) stipulates:

The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

The inclusion of these provisions and this distinction between rights and principles was primarily the result of the opposition of UK, and also some other countries like the Denmark and the Netherlands, to the inclusion in the Charter of ‘social rights’ as legally enforceable claims. The UK eventually agreed with the inclusion of the Charter into the draft Constitution on the condition that the distinction between rights and principles was further clarified. The distinction was thus the result of a hard won battle and formed a crucial element in the Charter’s adoption. Continue reading

Case Comment: CD v ST and Z v A Government Department & Ors (C-167/12 and C-363/12)

Michèle Finck, University of Oxford

Human procreation is not longer what it used to be. While medical research has created a number of mechanisms that allow people to engage in sexual intimacy without a resulting pregnancy, it also allows those wishing to procreate but who are unable to do so biologically to have children. IVF and surrogacy in many ways challenge our conception of human procreation. Naturally, the law needs to adapt to these changes.  Surrogacy in particular however raises a number of value-laden questions, which complicates the law’s response to these medical avenues. It is thus not surprising that no homogenous position exists between Member States on this issue.

In the CD and Z cases, the CJEU had to pronounce itself on how to reconcile surrogacy with an existing legal framework on maternity leave that did not account for motherhood resulting from that mechanism. More precisely, it was faced with the question of whether a mother who did not give birth to her own child, born via a surrogate, has a right to maternity leave under EU law. Family law is not a EU competence. Maternity leave is, however, regulated by the Pregnant Workers Directive (PWD) and some aspects arising out of motherhood and employment are addressed by the Sex Discrimination Directive. In Mayr, the CJEU had already clarified that the Sex Discrimination Directive is applicable to workers undergoing IVF that have not yet been successful.

In CD and Z, the Grand Chamber established that, as a matter of EU law, only women who themselves give birth to the child can benefit from maternity leave. Two Advocates General, Wahl and Kokott, issued opinions and came to opposed conclusions. The Court followed Advocate General Wahl in its judgment. Applying Mayr, it found that the PWD only applies to women who are in fact pregnant. The Sex Discrimination Directive was found not to be applicable either as the commissioning mother of a surrogacy agreement would be in the same position as a commissioning father. Having found that the question fell outside of the ambit of EU law, the CJEU also found the Charter of Fundamental Rights to be inapplicable. In the Z judgment, the CJEU further clarified that the Framework Equality Directive and its provisions on disabilities do not apply to women unable to become or carry out a pregnancy as the directive only targets disabilities that render a worker’s involvement in professional life more burdensome, which is not the case for medical conditions that prevent women from getting pregnant or carrying out a pregnancy. Continue reading

‘Exposing a Grave Injustice’: Montreal Exclusivity and the Rights of Disabled Passengers: Stott v Thomas Cook [2014] UKSC 15

Dr Jeremias Prassl

On March 5, 2014 the Supreme Court handed down its judgment in Stott v Thomas Cook (previewed for the UK Supreme Court blog last autumn here). The case had attracted significant interest domestically and internationally, with the claimant supported by the Equality and Human Rights Commission, and the Secretary of State for Transport intervening on his behalf.

Facts

During a journey from Zante, Greece, to East Midlands Airport in the autumn of 2009, the claimant Mr Stott, paralysed and permanently dependent on a wheelchair, suffered from a breach of his rights under the EU’s Disability Regulation (EC) No 1107/2006, as implemented in the United Kingdom by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895). The trial judge assessed compensation at £2,500 but saw himself unable to make such an award due to the exclusive application of the Montreal Convention of 1999 (‘MC’).

Thomas Cook had relied on that international convention’s uniform rules governing liability under the contract of carriage by air, suggesting that their exclusive scope of application was a well-established principle in domestic, European Union and international law and that passengers could therefore not seek redress under domestic law. Article 29 MC stipulates that

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention […]

The United Kingdom is a contracting party to the Montreal Convention, the provisions of which have also been incorporated into EU law by Regulation (EC) 889/2002. Giving the only substantive judgment for the Court of Appeal, Maurice Kay LJ had found in favour of the airlines on the basis of Article 29 MC:

The real injuries to [the claimants’] feelings […] were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed. [54]

Judgment

Judgment for the Supreme Court was given by Lord Toulson, with whom Lady Hale and Lords Neuberger, Reed and Hughes agreed. Following a summary of the facts and the relevant provisions in domestic and European Union law, his Lordship turned to a discussion of the Montreal Convention, ‘Article 29 [of which] is the rock on which Mr Stott’s claim for damages foundered’ [32].

Counsel for Mr Stott had suggested that the exclusivity question raised an important point of EU law and that the MC should not be applicable to the present case, which fell outside both its substantive and temporal scope. This could be illustrated by reference to joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel plc and Case C-344/04 ex parte IATA, where the CJEU had repeatedly found that the provisions of Regulation 261/2004 for compensation and assistance to passengers in case of delayed or cancelled flights were not incompatible with the MC, but rather a complementary regime of passenger protection. In rejecting this point, and the related request for a preliminary reference under Article 267 TFEU, Lord Toulson suggested that EU law as such was not engaged, or in any way manifestly clear, as the CJEU had held in ex parte IATA [at paragraph 42], that claims for damages on an individual basis would be subject to MC exclusivity, and Mr Stott’s claim was so founded.

Counsel for the Secretary of State for Transport, on the other hand, focussed on the temporal dimension of the claim, suggesting that the Regulations had been breached long before Mr and Mrs Stott’s embarkation. This argument, too, was rejected: on the facts, the actual injury had taken place only once aboard the aircraft, and also to avoid ‘encourag[ing] deft pleading in order to circumvent the purpose of the Convention’ [60]. Lord Toulson adopted the reasoning of Sotomayor CJ in King v American Airlines (see discussion below), and held that the quality of the cause of action was irrelevant: the Montreal Convention was designed comprehensively to deal with air carriers’ liability from the moment of embarkation until disembarkation. Continue reading

Jobless EU migrants and housing benefit

Dr Iyiola Solanke

According to reports from the BBC, ‘jobless migrants from within the European Union will be denied access to housing benefit from April this year’. Housing benefit is an ‘in –work’ benefit which provides support with rent for those who are unemployed or on a low income. As it is means tested, it may not cover all rent costs. It is administered through local councils to private and social landlords. Universal credit[1] will replace housing benefit in 2015. Before then, both Home Secretary Theresa May and Work and Pensions Secretary Iain Duncan Smith intend to introduce plans to ‘prevent exploitation of the UK welfare system’ by ‘jobless’ EU migrants.

Research[2] suggests that EU migrants are less likely than UK nationals to claim any form of benefits so the prevention of exploitation by targeting EU migrants is questionable. Furthermore, who are the jobless EU migrants – are they a composite group? Finally, as these measures will not apply to jobless nationals, would such action be compatible with EU law? There is indeed little free movement for jobless migrants under EU law[3] but when is an EU migrant ‘jobless’?

The ‘Jobless’

Focusing on the ‘jobless’ draws a broad distinction between this group and EU migrant ‘workers’: the former have few rights under EU law while the latter have many. Article 45 TFEU provides free movement to workers within the EU. A worker under EU law is a person who is employed: in Lawrie Blum and Collins the CJEU defined a worker as a person who provides services under direction of another for remuneration. The work itself must constitute a ‘genuine economic activity’: in Steymann the provision of maintenance tasks for was seen as such whereas in Bettray work conducted as part of a rehabilitation scheme was not. The number of hours worked and level of salary are irrelevant to the definition.[4]

The Citizenship Directive (CD) adopted in 2004 guarantees migrant EU workers and other ‘qualified persons’[5] equal treatment with nationals in the territory of a host member state. Migrant EU workers benefit from non-discrimination on the grounds of nationality – they and their family members are to be treated in the same way as any national worker, in relation to work, education and access to benefits. Conditions for this equal treatment are set out in Chapter III of the CD. Continue reading

Case Comment: Hay (C-267/12)

Michèle Finck, University of Oxford

2013 has been described as ‘the greatest year in gay rights history’. While this statement might be somewhat exaggerated, at least in the EU, important progress has been achieved. Also across the Atlantic, in the U.S., a number of States have legalized gay marriage, the Supreme Court has handed down a historic gay marriage ruling, and the federal legislature might, finally, pass legislation that prohibits discrimination on the basis of sexual orientation after the Senate’s approval.

Also in Europe, society and legal orders mirror an increased acceptance of homosexuality. Recently, a new government took office in Luxembourg, headed by an openly gay Prime Minister and an openly gay Deputy Prime Minister, making it only the third country in the world that was ever headed by a person not representing themselves as heterosexual (after Belgium and Iceland). Same-sex couples will be able to marry in England and Wales from March 2014.  Also, in 2013 France legalized gay marriage and adoption. A few weeks ago, the CJEU handed down an important judgment regarding homosexual asylum seekers. Over the past year, same-sex marriage bills were introduced in the United Kingdom, Finland, and Luxembourg. Ireland held a constitutional convention on the issue of gay marriage and will organize a referendum on the matter in 2015. Continue reading

Case Comment: Minister voor Immigratie en Asiel v X (C-199/12) Y (C-200/12) and Z

Anita PicAnita Davies

The case concerned the interpretation of Council Directive 2004/83/EC on minimum standards for the qualifications and status of third-country nationals or Stateless persons as refugees or as persons otherwise needing international protection and the content of the protection granted.

The applicants in this case were from Sierra Leone, Uganda and Senegal. They had all applied for asylum in the Netherlands between 2009 and 2011 and in support of their applications had claimed that they should be granted refugee status on the grounds that they had reason to fear persecution in their respective countries of origin on account of their homosexuality. In Sierra Leone homosexual acts are punishable by a sentence of imprisonment of 10 years to life. In Uganda anyone found guilty of ‘carnal knowledge of any person against the order of nature’ is liable to a term of imprisonment for which the maximum sentence is life. In Senegal there is a sentence of one to five years imprisonment or 100,000 – 500,000 CFA francs. The applications for asylum were refused. Following a series of appeals, the Raad van State made an application to the CJEU asking for clarification on the content of Article 9 (acts of persecution) and Article 10 (members of a particular social group) of the directive.

The questions referred were:

  1. Whether foreign nationals with a homosexual orientation form a particular ‘social group’ for the purposes of the Directive;
  2. Which homosexual activities might fall within the scope of the Directive:

(a) whether gay men could be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution;

(b) whether gay men could be expected to exercise restraint, and if so, to what extent, when giving expression to that sexual orientation in their country of origin, in order to avoid persecution;

(c) whether distinctions can be made between forms of expression which relate to the core area of sexual orientation and forms of expression which do not).

3. Whether the criminalisation of homosexuality amounts to persecutory treatment per se. Continue reading

Case Comment: AG’s Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (C‑199/12, C‑200/12 and C‑201/12)

Karon Monaghan QC

On 11th July 2013, Advocate General Sharpston delivered her Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (joined Cases C‑199/12, C‑200/12 and C‑201/12). The case concerned three nationals, X, Y and Z, of respectively Sierra Leone, Uganda and Senegal, all of whom are gay. They sought refugee status in the Netherlands, claiming a well- founded fear of persecution in their home countries based on their sexual orientation, relying, inter alia, on the fact that homosexuality is criminalized in Sierra Leone, Uganda and Senegal.

Their claims to refugee status fell to be considered under the EU Qualifications Directive 2004/83/EU (‘on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’). Replicating provision made under the Geneva Convention, the Directive defines a ‘refugee’ as a ‘third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country’. Further, as to persecutory acts, the Directive provides that  ‘9(1) Acts of persecution within the meaning of Article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms [including Articles 2 and 3]; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)’; ‘9(2). Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment’. Continue reading

Black experiences of policing: the conversation continues

TrayvonDr Iyiola Solanke

In July 2013, a group of activists, academics and lawyers gathered at Matrix Chambers and the University of Leeds School of Law to continue the conversation on black experiences of policing in the EU. This topic has recently received media coverage, not only here in the UK but also in Germany (the NSU trial), Sweden (the riots in Husby and elsewhere), and Greece (the ‘Golden Dawn’ effect).  The trial of George Zimmerman for the murder of black teenager Trayvon Martin[1] in the USA provided a global backdrop for the Roundtables. The ‘not guilty’ verdict [2]delivered by an all white Southern female jury was followed by widespread outrage and a discussion of the ‘Stand Your Ground’ rules under which Zimmerman was tried.[3] Perversely, while African-American children worried about whether they could walk the streets safely, somebody invented ‘trayvoning’ (adopting the pose of Trayvon’s lifeless corpse).

The Roundtables focused on the policing of racist violence as well as violent and racist policing. Discussions were set within the context of the new Europol Package proposed by the Commission in March 2013. The Europol Package aims to anchor the powers for policing in the EU in a binding Regulation and merge the operational activities of Europol with the training activities of CEPOL. Under the plans, CEPOL would become a department within Europol. It is questionable whether Articles 87 and 88 TFEU provide the powers for the envisaged reorganization and expansion of Europol. It is also questionable whether Europol could improve black experiences of policing across the EU. Continue reading